Transcript Presentazione standard di PowerPoint

The Union citizenship and
Directive 38/2004/CE
Limits, challenges, perspectives
Alessandra Lang
University of Milan
Control on the implementation of directive
2004/38 in the 5 countries
• No infringement procedure pending
• Just three preliminary rulings on the free movement of persons and
none on the problems emerging from the report
• France → C-325/08 [2010] Olympique Lyonnais
• Italy → C-270/13 [2014] Haralambidis
• Romania → C-33/07 [2008] Jipa
Free movement of persons
• Directive 2004/38 is not the only source of relevant law
• Right to reside stemming from other sources of EU law
• Right for workers’ children to reside where they study (case 389-390/87 [1989] Echternach
and Moritz)
• Right to reside for the parent of the worker’s child who studies (C-413/99 [2002] Baumbast)
• Right to reside for the spouse of the citizens of the Union in their State of origin if not
recognizing it amounts to an obstacle to free movement (C-370/90 [1992] Singh; C-60/00
[2002] Carpenter)
• Right to reside for the parent of minor children who reside in a MS under EU law (C-200/02
[2004] Chen)
• Right to reside for the parents of minor children who are citizens of the Union living in their
State of origin (C-34/09 [2011] Zambrano)
• Cases not dealt with by Directive 2004/38
• Family reunification of citizens of the Union in their State of origin
Directive 2004/38
• Giving rights to the citizens of the Union and their family members
• Protecting the interests of the States
How does Directive 2004/38 protect the
interests of the States?
• Free movement for many, but not for all
• First 3 months: no right to social assistance benefits under the
directive and removal if the citizen of the Union becomes an
unreasonable burden on the social assistance system of the MS
• Up to permanent residence:
• Right to reside if and until the citizen of the Union is economically selfsufficient
• Entitlement to social assistance benefits, but the State may check if the citizen
of the Union still meets the conditions for residence
• Departure on grounds of public order and public security
Social assistance system
for the purposes of Article 7(1)(b) of Directive 2004/38, the concept of
‘social assistance system’ “must be interpreted as covering all
assistance introduced by the public authorities, whether at national,
regional or local level, that can be claimed by an individual who does
not have resources sufficient to meet his own basic needs and the
needs of his family and who, by reason of that fact, may become a
burden on the public finances of the host Member State during his
period of residence which could have consequences for the overall
level of assistance which may be granted by that State”
(Brey C-140/12 [2013] paragraph 61).
Some States complain about abuses and
frauds
“certain immigrants from other Member States … avail themselves of
the opportunities that freedom of movement provides, without,
however, fulfilling the requirements for exercising this right.”
• Marriages of convenience
• Welfare tourism
The Directive offers answers, but requires in-depth case-by-case
scrutiny
States prefer automatic reactions
The EU’s response
• Council of Ministers
• Commission
• Handbook on marriages of convenience
• Guidelines on the concept of habitual residence on coordination of social
security schemes
• Better use of EU financial resources
• Helping local authorities apply EU fee movement rules
• European Council
A reversal of perspective?
European Council, 26/27 June 2014, Conclusions, EUCO 79/14
“12. As one of the fundamental freedoms of the European Union, the
right of EU citizens to move freely and reside and work in other
Member States needs to be protected, including from possible misuse
or fraudulent claims.”
Future
• Amendments to the Directive?
• Fine tuning by the Court of Justice
• Right of permanent residence
• Directive 2004/38 does not offer an answer to poverty